REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1167

September Term, 1996

_____________________________

BILL ADAMS, ET AL. v.

OWENS-ILLINOIS, INC., ET AL. _______________________________

Davis,Salmon,Getty, James S. (Ret'd, Specially Assigned),

JJ.

_____________________________

Opinion by Getty, J.

________________________________

Filed: January 29, 1998

This is an appeal from jury verdicts in nine asbestos cases

that were consolidated for trial in the Circuit Court for

Baltimore City. The trial judge (Pines, J.) also consolidated

159 additional asbestos cases involving eleven corporate

defendants. The verdicts at trial, therefore, were binding as to

negligence and product liability in all of the consolidated

cases.

The complexity of the cases is best illustrated by the

length of the trial. The plaintiffs' cases consumed forty-two

trial days, and the defendants' presentation lasted nineteen

days. The entire case, from jury selection until the verdicts

were rendered, lasted approximately six months, beginning January

17, 1995, and ending July 26, 1995. The jury deliberated for

fifteen and one-half hours over a three-day period.

The plaintiffs and their alleged asbestos-related diseases

were:

1. Estate of George Best and surviving widow, AlmettaBest, laryngeal cancer.

2. Thomas Birchett and Louise Birchett, lung cancer.3. Estate of Abram Hedges and surviving widow, Marie

Hedges, lung cancer.4. Estate of Hody Ruffin, colon cancer.5. Dominic and Dossie D’Amico, asbestosis.6. Edwin Wild and the Estate of Mary Wild,

asbestosis.7. Claim of Edwin Wild, Estate of Mary Wild and Edwin

Wild, surviving husband, mesothelioma - death byhousehold exposure.

8. Estate of Phillip Parsons and Elsie Parsons,surviving widow, mesothelioma.

9. Estate of Charles Drebing and Mildred Drebing,surviving widow, mesothelioma.

The deaths of Parsons and Drebing were conceded to be caused by1

mesothelioma from inhalation of asbestos. The punitive verdict was strickenbecause punitive damages cannot be awarded in a wrongful death action. In theParsons case, Owens-Corning was found liable for punitive damages in the wrongfuldeath case only.

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The jury returned verdicts for the defendants in the first

seven cases set forth above, and plaintiffs’ verdicts in cases

numbered eight and nine. The damages awarded in the Parsons case

included no damages for wrongful death, and $86,000 in the estate

case. In Drebing, the jury allowed compensatory damages in the

amount of $112,500 to Mildred Drebing. In the Personal

Representative’s case, no damages were awarded for pain and

suffering, or for medical and funeral expenses. Appellants

allege that the defendants had agreed to the $2,000 statutory

amount of funeral expenses, and that $42,981 in medical bills for

Drebing’s last illness were proved.1

The verdicts on liability as to the defendants are as

follows:

AC&S, Inc. Negligent, not strictly liableArmstrong Not negligent, not strictly liable, but whose asbestos products were a

substantial factor in causing Parsons’s and Drebing’s mesothelioma.Foster Wheeler Not liable.GAF Corporation Negligent, not strictly liable. (cross-defendant)Hopeman Bros. Not liable.Owens-Corning Negligent, strictly liable.John Crane, Inc. Not liable.Pittsburgh Corning Negligent, not strictly liable.Porter-Hayden Negligent, not strictly liable.Owens-Illinois (cross- Negligent, strictly liable. defendant)Fibreboard Corporation Not liable. (cross-defendant)Combustion Eng. (cross- Not liable.

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defendant)Babcock & Wilcox Not liable.Bethlehem Steel Not liable (in the Mary Wild domestic exposure case only).

Appellants allege that they have appealed because of

“flagrantly unjust and conflicting verdicts directly attributable

to gross errors committed by the trial court in jury selection,

which led to the open alienation, disaffection, and hostility of

jurors being visited upon the plaintiffs.” Specifically,

appellants raise the following issues, which we have rephrased in

a more neutral fashion:

1. Whether the trial court abused itsdiscretion in denying appellants’ motionto strike, for cause, potential jurorsNos. 1, 3, 24, and 67.

2. Whether appellants were deprived ofallotted peremptory strikes by thecourt’s denial of appellants’ motion tostrike the above-named jurors for cause.

3. Whether the court erred in denyingappellants’ motion for new trial, whichwas based upon:a. Errors in jury selection,b. Irreconcilable contradictions and

confusion in jury verdicts,c. Failure to grant new trials in the

seven cases where no recovery wasawarded.

4. Whether the court erred in denying amotion for new trial as to allappellants against Bethlehem Steel,Hopeman Brothers, and Foster Wheeler.

5. Whether the court erred in admittingtestimony and exhibits concerningcommunication and knowledge of laborunions as to the dangers of asbestos.

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Jury Selection

Jury selection began on January 17, 1995, and continued for

three days. The array consisted of 88 potential jurors. From

that number, six jurors were selected to hear the case and eight

alternates were chosen. Each side was allotted seven strikes.

Of the fourteen jurors originally chosen to hear the case, five

were excused after they were seated. Juror No. 1, an athletic

coach at McDonough School, was excused after five months service,

and a Johns Hopkins nurse, juror no. 12, was also excused in the

fifth month. One day before jury deliberation was to begin, a

kindergarten teacher was excused. Juror no. 11 was excused after

two months, and juror no. 14 was excused the day after jury

selection. All five had previously requested to be dismissed.

Appellants used four of their peremptory strikes, after

unsuccessfully requesting that they be struck for cause, to

strike jurors no. 1, 3, 24, and 67. Before discussing the four

named jurors struck by appellants, it is important to discuss the

method of selection followed by the court in this case. Each

juror completed a sixteen-page questionnaire and a separate

hardship questionnaire for those who asserted a basis for being

excused, followed by three days of individual voir dire by

counsel and the court. After each individual juror was examined

and then excused from the courtroom, counsel argued challenges

for cause and hardship claims.

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On January 30, before final selection, the court permitted a

number of panelists to express their concerns about serving,

followed by further questioning by counsel and argument to the

court. After the court considered the status of all potential

jurors, the clerk identified the first twenty-eight and the

peremptory challenges were then submitted to the clerk. The

first six remaining became the primary jurors and the eight

remaining were alternates.

Under this procedure, the court excused approximately

twenty-five of the original panel for hardship or cause. Over

the six-month period, the court excused one primary juror and

five alternates: three for medical reasons, one to attend a

funeral, one as a matter of the court’s discretion, and one for

hardship (new job) reasons. None of the four about whom

appellants now complain served as a primary or alternate juror.

Appellants did not object to using their peremptory strikes to

eliminate these four jurors on January 30, when they made their

strikes; neither did they seek to explain how they would have

exercised their strikes but for the court’s refusal to dismiss

them for cause.

The trial court’s ruling on jury composition is reviewable

on appeal only for an abuse of discretion. State v. Cook, 338

Md. 598 (1995). We defer to the trial judge’s unique opportunity

to observe the demeanor and suitability of potential jurors.

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Gorman v. State, 67 Md. App. 398, 409 (1986). None of the four

challenged jurors stated that he or she would be unable to judge

the case fairly and impartially based upon the evidence. Under

Maryland law, a juror must be discharged for cause only when that

juror cannot be impartial. King v. State, 287 Md. 530, 535

(1980). In McCree v. State, 33 Md. App. 82, 98 (1976), we stated

that a juror may be struck for cause only “where he or she

displays a predisposition against innocence or guilt because of

bias extrinsic to the evidence to be presented.” Although the

cases cited are criminal, the same logic applies to civil cases;

the linchpin in either is lack of bias and a resolve to be fair

and impartial.

Appellants argue that the four jurors they struck should

have been struck for cause based upon hardship. Under section 8-

210(a) of the Md. Code Courts & Judicial Proceedings Article, a

juror may be excused by the court where “undue hardship, extreme

inconvenience, or public necessity require his excuse....”

Significantly, the trial judge, through his personal observation,

is able to assess the credibility, demeanor, and fitness of each

prospective juror. Judge Pines granted some hardship requests

and denied others on an individual basis. The record does not

support the suggestion that he abused his discretion in selecting

a jury. Appellants, furthermore, raised no objection to the

jurors who actually heard the case. In St. Luke Church v. Smith,

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318 Md. 337, 344 (1980), a case involving a procedural

irregularity in the distribution of peremptory challenges, the

Court said, “In civil cases this court will not reverse for an

error below unless the error was both manifestly wrong and

substantially injurious.” A claim that the jury was not

impartial, furthermore, must focus on the jurors who served.

Grandison v. State, 341 Md. 175 (1995). Appellants opposed every

effort by appellees to obtain a mistrial for juror bias.

Clearly, appellants have shown no prejudice in the composition of

the jury that did not include the four jurors struck for cause by

appellants. Even if it were error not to strike the four jurors

for cause, there is no basis for reversal absent a showing of

prejudice. We perceive no prejudice in the jury selection

process.

New Trial

Appellants have maintained throughout the issues they have

raised that the jury dissatisfaction with the length of the trial

resulted from the court’s refusal to advise the jury at the

outset of the trial that the case might last five months. On

January 26, 1995, prior to the jury being sworn, appellants’

counsel filed a Motion to Inform Jurors of Trial Length and

Hiatuses. The motion set forth the scheduled dates, beginning

with February 13, with the likelihood that only four trial days

would be utilized through February 27, followed by a no-court

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period for two weeks. Thereafter, trial days from March 13 to

April 13 would continue on the four day per week schedule.

Another no-court period was set in from April 13 to April 24.

Appellants requested “full and fair disclosure... at the

outset... so as to lessen the probability of an unjust verdict

rendered by an alienated jury.”

The court denied the motion and informed the jurors that

they were there “for what we call a protracted case,” which is a

consolidation of a number of cases, and that the trial “may very

well last several months.” In June, the court clerk was directed

to inquire whether the jury would be amenable to a one-month

continuation of the trial from July 1 to August 1. According to

appellants, the jury was not told that the request was by the

court. The response was a series of letters protesting strongly

any further delay in the conduct of the trial, and requesting

that the court set a July 31 deadline to complete the trial. The

case ended July 27.

Interestingly, appellees made a motion for mistrial after

receiving what they perceived to be “those very disturbing 7

letters that we received from the jurors.” Appellees all joined

in the motion, alleging that “the letters on their face impel the

court to grant a mistrial because of the jury’s anti-trial, if

not anti-defense bias.” Of primary concern to appellees were the

criticisms leveled at defense counsel for initiating two

postponements for personal reasons. Appellants, however, argued

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against granting a mistrial and opposed all requests to voir dire

the jury. After the proverbial shoe has fallen, however, the

roles are now reversed. Appellants argue that the jury was

hostile toward them, and appellees contend that appellants cannot

now reverse their field. If the current posture of the case

proves anything, it would seem to us to establish that Judge

Pines was right on each occasion he ruled on the mistrial.

We have reviewed the seven letters and, in our view, they

are not as threatening as counsel for the parties perceive them

to be. Juror No. 2, who eventually became the foreperson,

requested a deadline for counsel to conclude their arguments and

added, “It does not benefit their cases to have hostile jurors

hearing them.” We do not interpret her comments as an admission

that the jurors were currently hostile. Read in conjunction with

the preceding sentence requesting a deadline, her later statement

may be interpreted to mean that, unless a date of finality is

set, a hostile jury might result. Juror No. 2, moreover,

included all counsel in her comments, without any indication of

bias or prejudice toward either appellants or appellees.

Juror No. 6 was understandably concerned over another delay

costing her a job she had just started after a three-year effort

to find one. She stated that “the lawyers or whomever should

suffer as we have been suffering for almost four months. They do

not need another vacation since we cannot have one.... Please

consider talking to the lawyers or who it concerns and encourage

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or demand them to end this trial by July 27 ....” Again, theth

juror directed her criticism to counsel for both parties. The

letter, presumably written early in June, reasonably suggested

termination within six or seven weeks, i.e., the end of July.

The remainder of the letters expressed a feeling that the

jurors were being treated unfairly by the delays, and that their

own lives were being disrupted unnecessarily. We agree with the

jurors. Their comments, however, in the court’s opinion did not

warrant granting a mistrial, which would have meant a waste of

four months for all concerned. Instead, the court heeded the

message from the jurors and instructed them not to consider the

length of the trial in their deliberations. Presumably, they

followed the court’s instructions.

Appellants’ next attack on their denial of a motion for new

trial relates to the seven plaintiffs who were denied recovery by

the jury. We shall address each claim within the precept of Buck

v. Cam’s Broadloom Rugs, 328 Md. 51, 59 (1992), which provides

that the discretion of a trial judge is at its broadest when a

motion for new trial

ask[s] the trial judge to draw upon his ownview of the weight of the evidence; theeffect of an accumulation or alleged errorsor improprieties by defense counsel...; andthe allegedly inadequate verdict, indetermining whether justice would be servedby granting a new trial.

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Judge Pines obviously heard all of the testimony and observed the

demeanor of all the witnesses.

<< Dominic D’AmicoMr. D’Amico was using an oxygen tank when he appeared in court.He alleged that he has asbestosis, a scarring of lung tissue, andpleural plaques, a scarring on the lining of the lung which canbe caused by asbestos and may be detected by X-ray or CT scan,but does not generate symptoms.

In contrast to his medical testimony supporting his claim,appellees called a local pulmonologist who attributed D’Amico’scondition to emphysema, chronic asthmatic bronchitis and coronaryartery disease. None of these conditions, according to thewitness, resulted from asbestos. The witness found pleuralplaques from radiological studies, but did not attribute any ofD’Amico’s complaints to that finding. An expert on radiologicalfindings at Johns Hopkins Hospital found no evidence of asbestosin the patient’s CT scans, but testified that he observed twotiny plaques which may have been caused by asbestos. Theconclusion of these experts was that D’Amico did not haveasbestosis, and he did not have diffuse pleural thickening causedby asbestos.

< Hody RuffinMr. Ruffin died from prostate cancer. Appellees presented expertevidence that Mr. Ruffin did not have asbestosis or pleuralplaque thickening. He had colon cancer, which was not the causeof his death, and the colon cancer was not caused by asbestos.

< Abram HodgesMr. Hodges claimed that he had asbestosis and lung cancer causedby asbestos. Appellees produced testimony that the claimant mayhave had mild asbestosis pathologically, but the fibrosis in hislungs was overwhelmingly siderosis caused by welding fumes. Thetestimony from appellees’ experts was that they detected noclinical or symptomatic evidence that the claimant had asbestosisin his lifetime, and that his lung cancer was attributable solelyto his long-term habit of cigarette smoking. He did havecigarette-related emphysema.

< Thomas BirchettMr. Birchett contended that he had asbestosis and lung cancerfrom exposure to asbestos. His cancer was surgically removed.Appellees produced evidence that he did not have asbestosis orpleural thickening, and that his lung cancer was caused bycigarette smoking, not by asbestos.

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< George BestMr. Best died from cancer of the larynx. Medical testimony bywitnesses for the appellees indicated that asbestos does notcause cancer of the larynx; that the claimant did not haveasbestosis; and that the primary risks for his cancer werecigarette smoking and drinking distilled spirits.

< Edwin WildFour medical experts testified that this 81-year-old claimant didnot have clinical evidence of pulmonary asbestosis. Theyattributed his condition to coronary artery calcification, severeemphysema, and bronchitis. His obstructive airway disease wasattributed to smoking cigarettes.

< Mary WildMrs. Wild died at age 82. Her asbestosis was alleged to haveresulted from handling and washing her husband’s clothing. Shehad no exposure to shipyard asbestos other than through herhusband’s clothing. Three expert witnesses for appelleestestified that Mrs. Wild did not suffer from an asbestos relatedmesothelioma tumor. No asbestos bodies were detected in the lungtissue; the material detected related to “talc, mica, or kaolin.”Mesothelioma occurs in 20-30 percent of the cases where noasbestos exposure is involved, according to one of appellant’sown medical experts.

The credibility of the witnesses was for the jury to

determine. Owens-Corning Fiberglass Corp. V. Garrett, 343 Md.

500, 522 (1996). Appellants had the burden of persuading the

jury, by a preponderance of the evidence, that each of them had

an asbestos-related disease. Thados v. Bland, 75 Md. App. 700,

cert. denied, 313 Md. 689 (1988).

From the record, it is abundantly clear that both parties

presented expert testimony on the issue of whether any or all of

the claimants suffered from an asbestos-related disease. Which

experts were more credible was for the jury, not this Court, to

decide.

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Inconsistent Verdicts

Appellants cite the failure of the jury to return consistent

verdicts in the Drebing and Parsons cases which, they allege,

involved substantially the same exposure to Owens-Corning’s

products during the same period of time. Appellants are further

aggrieved by the “niggardly” amount of damages awarded in the two

cases. Although irreconcilably defective verdicts may be subject

to rejection, inconsistent verdicts, generally, are not. See S&R

v. Nails, 85 Md. App. 570, 590 (1991), “Where the answer to one

of the questions in a special verdict form would require a

verdict in favor of the plaintiff and an answer to another would

require a verdict in favor of the defendant, the verdict is

irreconcilably defective.” Accord: Gaither v. Wilmer, 71 Md.

361, 364 (1889).

Appellants cite no Maryland case that would require reversal

for inconsistent verdicts. In Owens-Corning, supra, 343 Md. at

521, the Court of Appeals stated:

[A] jury’s verdict should not be casuallyoverturned. In our system of justice, thejury is sacrosanct and its importance isunquestioned. The members of the jury seeand hear the witnesses as they testify. Theywatch them as they sweat, stutter or swaggerunder the pressure of cross-examination.

We agree that the jury gave different amounts in its decisions

about the Drebing and Parsons cases, and awarded punitive

damages, later struck by the court, in one case and not in the

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other. The result, however, is not necessarily inconsistent,

because they were separate cases, similar, but not identical. In

any event, it is not the province of an appellate court to

express an opinion regarding the weight of the evidence when

reviewing a judgment on a jury verdict. See Owens-Corning,

supra, 343 Md. at 521.

On the common issue verdict sheets, previously set forth

herein, appellants advance additional argument relating to

inconsistent verdicts. We do not find the claims persuasive,

primarily because reviewing the weight of the evidence is not

within the province of appellate review. We will review,

briefly, the argument by appellants.

The jury found AC&S negligent for its use of block

containing asbestos from 1958 to 1970, and negligent for using

asbestos pipe covering from 1968 to 1970. Appellants argue that

there was no evidence concerning the limited use of pipe covering

from 1958 to 1968. Appellants are rehashing the sufficiency or

the weight of the evidence as to two different products at two

different periods. We reject their argument.

The same argument is raised relating to the time periods in

which Owens-Corning and Owens-Illinois were found to be either

strictly liable or negligent. As we said previously, evidentiary

questions are not a proper subject for our review. A finding of

negligent, but not strictly liable, furthermore, has been upheld

15

as not being inconsistent. See Eagle-Picher Industries, Inc. v.

Balbos, 326 Md. 179 (1992). The jury may have concluded that

1. A product was not unreasonably dangerous, but thedefendant was negligent in not issuing warnings, or2. A product was unreasonably dangerous, but thedefendant breached no duty of care.

Either scenario could result in a determination of negligence not

strictly liable, or in a not negligent strictly liable finding

without being inconsistent.

Bethlehem Steel

Appellants seek a new trial against Bethlehem Steel for

failure to instruct the jury on the employer’s duty to maintain a

safe workplace for its employees. Contrary to appellants’ claim

that this assignment of error was included in their motion for

new trial, it was not. Neither was appellants’ proposed

instruction mentioned in the new trial motion. The court cannot

be faulted for failing to grant that which it was never asked to

consider.

Judge Pines gave special instructions applicable only to

Bethlehem Steel in the Mary Wild case. He said:

Under Maryland law, to establish a cause ofaction in negligence against Bethlehem, theplaintiffs must prove the existence of allfour of the following elements:

One, a duty which Bethlehem owed Mary Wild.

Two, a breach of that duty by Bethlehem.

Three, a legally cognizable causalrelationship between Bethlehem’s breach of

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duty and the harm suffered by Mary Wild, andfour, damages.

Appellants argue that the court erred in failing to grant

Proposed Instruction 44, which states:

An employer has the duty to use reasonablecare and diligence to furnish his employeeswith a reasonably safe place to work.

An employer has the affirmative duty in amaster-servant relationship to provide hisemployee with a reasonably safe place inwhich to work and to warn and instruct hisemployee concerning the dangers of the workknown to him which are not obvious and cannotbe discovered by the exercise of reasonablecare by the employee.

Insofar as the instruction was concerned, Edwin Wild was not

asserting a claim for injury he sustained. Therefore,

Bethlehem’s duty to its employees was not an issue, because Mary

Wild was not an employee. Instruction 44 was properly refused.

An action in negligence requires a showing of “a legally

cognizable duty owed by the defendant to the plaintiff or class

of persons of which the plaintiff is a member.” Rosenblatt v.

Exxon Co. U.S.A., 335 Md. 58, 76 (1994). “The plaintiff sues in

her own right for a wrong personal to herself, and not as the

vicarious beneficiary of a breach of duty to another.” Polsgraf

v. Long Island R.R. Co., 162 N.E. 99, 100 (1928). Judge Pines

instructed the jury that appellant was required to prove that

Bethlehem owed a duty to Mary Wild and breached that duty. If

liability for exposure to asbestos could be premised on Mary

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Wild’s handling of her husband’s clothing, presumably Bethlehem

would owe a duty to others who came in close contact with Edwin

Wild, including other family members, automobile passengers, and

co-workers. Bethlehem owed no duty to strangers based upon

providing a safe workplace for employees.

Hopeman and Foster Wheeler

Neither Hopeman nor Wheeler manufactured any product

containing asbestos. Hopeman was a joiner contractor and Foster

Wheeler designed marine boilers. Appellants allege that the

court improperly instructed the jury on the law of strict

liability as applied to intermediate sellers and installers of

asbestos products. Specifically, appellants claim the

instruction given “did not equate the liability of an installer,

seller, and supplier with the duty of a manufacturer.”

Judge Pines advised the jury that

[w]ith regard to strict liability, if aproduct is defective when sold by amanufacturer... and if the product reachesthe plaintiff without substantial change,middlemen or other intermediate sellers ofthe defective product are strictly liable tothe plaintiff, just as the manufacturer isliable to the plaintiff.

The court’s language is precisely the same as in Owens-Illinois

v. Zenobia, supra. There was no error. Appellants, furthermore,

did not preserve this issue for our review. Md. Rule 2-520(e)

states that a party may not assign as error the giving or failure

to give an instruction unless the party states distinctly the

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matter objected to, and the ground therefor, immediately after

the court instructs the jury. Appellants having made no such

objection, there is nothing for us to review.

Assuming for purposes of discussion that the instructions in

the liability of manufacturers and non-manufacturers were

incorrect, any error would be harmless as to appellants. The

jury decided that the products supplied by Foster Wheeler,

Hopeman Brothers, and John Crane were not a substantial

contributing cause of any injuries allegedly sustained by

appellants’ exposure to asbestos. The jury also found these

three defendants not liable under the negligence and strict

liability claims asserted. See Johnson v. Mitchell Supply, 33

Md. App. 90, 100 (1976).

Knowledge of Unions

Appellants’ final shot does not revive their request for a

new trial. The court allowed appellees to introduce evidence

establishing that appellants’ union had knowledge of the hazards

associated with asbestos. We note that appellants offered into

evidence a document published in 1943 by the United States Navy

and by the Maritime Commission entitled “Minimum Requirements for

Safety and Industrial Health in Contract Shipyards.” The

document listed asbestos as a hazard that required certain

precautions in handling asbestos-containing products. Appellants

sought to establish that appellees knew or should have known of

the hazards of asbestos as early as 1943, when the documents were

published. Appellees were entitled to show that the unions

dutifully disseminated this information to their employees

together with suggested safety measures for the protection of the

workers. Appellees were attempting to show that the absence of a

product warning was not a proximate cause of appellants’

injuries, and that the dangers of asbestos were not being kept

from the employees. The court, furthermore, limited the use of

this evidence by advising the jury that appellees’ duty to warn

was “non delegable.” Judge Pines did not abuse his discretion in

allowing the evidence complained of.

JUDGMENTS AFFIRMED.

COSTS TO BE PAID BYAPPELLANTS.

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